Jelen Carpio, as personal representative of the estate of Diogenes Carpio, Jr. v. NCL (Bahamas) Ltd., D-I-Davit International, Inc. and Hatecke Service USA, LLC

At a glance

Parties

Jelen Carpio, as personal representative of the estate of Diogenes Carpio, Jr., v. NCL (Bahamas) Ltd., D-I-Davit International, Inc. and Hatecke Service USA, LLC

Case no.

No. 1:18-cv-22923-GAYLES/OTAZO-REYES

Court

U.S. District Court, Southern District of Florida (Judge Darrin P. Gayles)

Forum and rules

Motion to compel arbitration under the New York Convention (9 U.S.C. §§ 201–208), Articles II and V

Treaty

New York Convention 1958

Sector

Maritime employment; cruise ship crew

Outcome

NCL's motion to dismiss and compel arbitration was granted, and all claims against NCL were dismissed without prejudice (9 January 2019).

Amount

Settlement already paid by NCL: $130,000

The dispute

Diogenes Carpio, Jr., a Filipino crewmember on NCL's vessel Norwegian Breakaway, drowned on 20 July 2016 when a lifeboat he was boarding during a drill came away from the ship and he fell about six stories into the water. His Employment Agreement and a Collective Bargaining Agreement required all claims against NCL to go to binding arbitration in the Philippines. His widow started arbitration in the Philippines. She then settled for $130,000 and signed a release, which a Labor Arbitrator approved. She later sued NCL and two other defendants in Florida. She argued that the approved settlement was a final arbitral judgment that the court should vacate on public policy grounds, because she had no lawyer and NCL's agent had misrepresented her rights. NCL moved to dismiss and compel arbitration in the Philippines, and argued forum non conveniens in the alternative.

Key holdings

1. On a motion to compel arbitration under the Convention, the court must compel arbitration unless the four jurisdictional prerequisites are missing or an affirmative defense applies. Under Article II the only defense is that the agreement is null and void, which is limited to defenses such as fraud, mistake, duress and waiver. Public policy under Article V is available only when an award is being enforced. pp. 2–3
2. The Labor Arbitrator's approval of the settlement is not a final judgment or award. It is only a settlement approval, with no findings on the merits. Arbitration has therefore not yet taken place, and Article V's public policy exception does not apply. p. 4
3. Even if the settlement were an award, the plaintiff did not show that it was void as against public policy. She made only broad claims of misrepresentation and lack of counsel, and she never said she did not understand what she signed. Her argument that she could not pursue her Jones Act claims in arbitration has been rejected by the Eleventh Circuit as premature. pp. 4–5
4. The plaintiff did not dispute that the jurisdictional prerequisites were met or that the arbitration clauses bound her, and she showed no Convention defense. The motion was granted, and all claims against NCL were dismissed without prejudice. The court did not decide forum non conveniens. p. 5; p. 1 n.1

Procedural history

1. 20 July 2016Diogenes Carpio, Jr. dies in a lifeboat accident on board the Norwegian Breakaway.
2. The plaintiff starts arbitration in the Philippines. The parties settle for $130,000, and a Labor Arbitrator approves the settlement.
3. The plaintiff sues in the Southern District of Florida. NCL moves to dismiss the Amended Complaint and compel arbitration.
4. 9 January 2019The court grants NCL's motion and dismisses the claims against NCL without prejudice.

Tribunal, counsel and experts

Decided by

• Darrin P. Gayles Judge, U.S. District Court, Southern District of Florida

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Keywords

• New York Convention
• motion to compel arbitration
• Article II
• Article V
• public policy
• null and void
• seafarer
• Jones Act
• Philippines arbitration
• settlement agreement
• Labor Arbitrator
• collective bargaining agreement
• cruise ship
• Norwegian Breakaway
• lifeboat accident
• Escobar v. Cruise Operator
• Lindo v. NCL

Summary generated with AI from the published documents — refer to the award for the authoritative text.